2.The
Constitution [Seventy-Third Amendment] Act, 1992 came into force on 24th April, 1993 to give effect to one of the
Directive Principles of the State Policy, viz., Article 40 of the Constitution
of India which directs the State to organise village panchayats as units of
self-government.

3. On
coming into force of the said Constitutional Amendment, the States were 257
required by the Centre to take steps to organise village panchayats on the
lines o the provisions of the said Constitutional Amendment by making law or
amending the existing law suitably. The Uttar Pradesh State Legislature amended
its Panchayat Raj Act, 1947 [hereinafter referred to as the 'Act'] by enacting
the U.P. Panchayat Raj [Amendment] Act, 1994 which came into force on 22nd April, 1994. As per the provisions of the Act,
several Government instructions and notifications were issued and rules were
framed between 22nd
April, 1994 and 31st August, 1994 with a view to hold elections to
the panchayats. In particular the declaration of the gram panchayat areas under
Section 11-F and the establishment of the gram sabhas under Section 3 were made
between 2nd and 5th
August, 1994. The term
of the gram panchayats constituted under the unamended provisions of the Act was
to expire on 23rd
April, 1993. The
Governor extended their term till 23rd April 1995 or till new panchayats were
constituted, whichever was earlier. The elections to the new panchayats were
then notified on 31st
August, 1994. In
pursuance of this notification the election process was to commence on 29th September, 1994.

4.The
respondents approached the High Court by writ petitions between 1st and 9th September, 1994 making a grievance that the
Government orders were being violated in the process of re-organisation and
delimitation of the constituencies. A few of the respondent-writ petitioners
also challenged the said Constitutional Amendment as well as the vires of the
Act. The High Court heard all the petitions together. The State Government, by
filing an affidavit as well as through publications in the press from 9th
September to 19th
September, 1994,
offered a fresh time- schedule of the elections and also to remove the
grievances after considering the representations. On 24th September, 1994, the State Government cancelled the
notification dated 31st
August, 1994. On 26th September, 1994, the High Court reserved its
judgment. In the meantime, under compulsion and pressure from the Centre
including a threat to stop the release of funds unless the process of election
was completed by 31st December, 1994, conveyed in the Centre's communication
dated 12th November, 1994, the State Government renotified the dates of
elections on 26th November, 1994 in pursuance whereof the process of election
was to commence on 3rd December, 1994.

5. The
High Court by its impugned judgment delivered on 2nd December, 1994 has held,
among other things, that the definitions of 'village' under Section 2 [t], of
'Grain Sabha' under Section 2 [g] and of 'Panchayat Area' under Section 2 [11]
read with Section 11-F of the Act were ultra vires the respective definitions
given in Articles 243 [g], 243 [b], and 243 [e] read with Article 243-C of the
Constitution. The High Court has further held: [i] that the village has to be a
habitat according to the anthropological concept, [ii] that the village for the
purposes of the Panchayat can be specified only in accordance with the wishes
of the inhabitants of the village as conveyed to the Governor who is obliged to
notify it without involvement of the State Government, [iii] that the Governor
has to act independently of the State Government in the matter of specification
of the "village" and [iv] further the village will have to be fixed
according to the aspirations, chauvinism and the wishes of the villagers. As
regards the 258 Grain Sabha, the Court has held that although the definition of
Gram Sabha refers to a body of persons registered in the electoral rolls, the
reference to "establishment under Section 3" and the provision for
establishment and notification of Gram Sabha in Section 3, are ultra vires the
Constitution and that the State Government has no power to establish or notify
Gram Sabha.

6. It
will appear from the impugned judgment that its main thrust is against the
definition of 'village' in Section 2 [t] of the Act. The other findings are
directed more against the procedure laid down in the Act to take the various
steps for constituting the panchayats than against the substantial provisions.
Before we deal with the findings of the High Court, we may usefully refer to
the relevant provisions of the Constitution and the Act.

7. The
provisions of Article 40, to give effect to which the 73rd Constitutional
Amendment was effected read as follows:

"40.
Organisation of village panchayats, The States shall take steps to organise
village panchayats and endow them with such powers and authority as may be
necessary to enable them to function as units of self-government.

8. The
aforesaid provisions neither define 'village' nor give guidelines for organising
village panchayats. All that they require is that the village panchayats
howsoever organised have to be equipped with such powers and authority as may
be necessary to enable them to function as units of self-government. There is,
however, no doubt that when the Article speaks of village panchayats as units
of self- government, it has in view the Organisation of the lowest level units
of self-governance in the hierarchy of self- governing, democratic, policy
making and administrative units. In other words, the village panchayats are
envisaged by the Article as the base democratic institutions of a pyramid of
the democratically organised and functioning self-governing units. This being
so, while organising the village panchayats, what is necessary to be kept in
mind is

[a]
that they are to be the self governing units at the lowest end of the
democratic polity,

[b]
that being self- governing units, those who are governed by the said units and
for whose benefit they are going to operate, will have either a direct or an
elective indirect representation in them;

[c] that
they will have an effective say in the conduct of their affairs including its
plans, policies and programmes and their execution and

[d] that
thus they will have not only a sense and satisfaction of participation but also
an experience in the governance of their own affairs.

So
long as the village panchayats are organised to achieve the said objectives,
the requirements of the said Article will have been complied with both in their
spirit and in letter.

9. We
may now turn to the provisions of the 73rd Constitutional Amendment by which
Part IX consisting of Articles 243 to 243-0 has been introduced in the Con- stitution.

10.
Article 243 [g] defines 'Village' to mean a village specified by the Governor
by public notification to be a village for the purposes of the said Part and
includes a group of villages so specified. It will be apparent from this
definition of 'village' that on the one hand, it does not stock to any particular,
much less the vintage con- 259 cept of village that the High Court has in mind,
viz., the anthropologically evolved and sociologically identifiable habitat and
on the other, it gives the Governor power to specify a village as he may deem
fit. The village so specified by him may include a group of villages. The
Constitution permits the Governor to declare any populated rural area as a
village. The village which the Governor has to specify is a village for the
purpose of carrying out the provisions of Part IX of the Constitution and not
for any other purpose. Hence to bring in any particular concept of village and
to read into the said Article any pre-conceived notion of village is
unwarranted by law.

11.
Article 243 [b] defines 'Gram Sabha' to mean a body consisting of persons
registered in the electoral rolls relating to a village comprised within the
area of panchayat at the village level. In other words, it is the electorate of
the village panchayat whether the panchayat is for one village or a group of
villages. Article 243 [d] defines 'panchayat' to mean an institution [by
whatever name called] of self government constituted under Article 243B for the
rural areas. This provision further makes it clear that even the expression 'panchayat'
is not of any particular significance. What is of essence is that the
institution so called must be of self government in the rural area since the panchayat
raj envisaged by the said Part of the Constitution is for the rural as against
the urban areas for which a provision is made in another part of the Consti- tution.
Much sentiment may not, therefore, be wasted on the expression ` panchayat'.
The attention on the other hand, has to be focussed on the question whether the
institution so constituted is self-governing or not.

12.
The panchayats are to be constituted at the village, intermediate and district
levels and the "panchayat area" as defined by Article 243 [e] means
the territorial area of the panchayat whether at the village, intermediate or
district levels. What is necessary to remember further is that while as per
Article 243 [c] "intermediate level" is a level between the village
and district levels, as specified by the Governor, the 'district' as per
Article 243 [a] means a district in a State the boundaries of which may be
changed by the State Government. The district is not required to be specified
by the Governor whereas village and intermediate levels have to be specified by
him for the purposes of the said Part of the Constitution.

13.
Article 243-A states that a Gram Sabha which, as stated above, is the
electorate of the village panchayat, may exer- cise such powers and perform
such functions at the village level as the legislature of the State may by law
provide.

In
other words, the powers and functions of the village panchayat are to be
determined by a State enactment.

Article
243-B states that there shall be constituted panchayats at the village,
intermediate and district levels in accordance with the provisions of the said
Part of the Constitution. However, in a State having a population not exceeding
20 lakhs, it is not obligatory to constitute panchayats at the intermediate
level.

14.
Article 243-C gives direction with regard to the composition of panchayats at
different levels. What is necessary for our purpose to note from the said
provisions is that throughout the State the number of 260 seats on each panchayat
have to have, as far as practicable, a uniform ratio to the population
comprised in the panchayat area. The panchayat area is further to be divided
into territorial constituencies and the constituencies are to be so delimited
as to maintain throughout the panchayat area a uniform ratio between the
population of each constituency and the number of seats allotted to it, as far
as practicable. Further, the seats in the panchayat are to be filled by direct
election from the territorial constituencies. The chairpersons of the panchayats
at the village level have to have representation in the panchayats at the
intermediate level if constituted and at the district level, if not
constituted, and the chairpersons of the panchayats at intermediate level where
they are constituted are to have representation in the panchayats at the
district level. In addition, the Article directs that the State enactment may
also provide for the representation of the Members of Parliament and of the
State Legislature.

Chairpersons
of the panchayat at the village level have to be elected in such manner as the
State legislation may provide while the chairpersons of the panchayat at the
intermediate level or district level are to be elected by and from amongst the
elected members thereof.

15.
Article 243-D makes provision for reservation of seats for the Scheduled
Castes, Scheduled Tribes including women belonging to Scheduled
Castes/Scheduled Tribes and also for other women in the panchayats at all the
levels. Article 243-E provides for the term of the panchayat which is five
years. Article 243-F provides for disqualifications for the membership of the panchayat.
Article 243-G speaks of powers functions and responsibilities of the panchayat
to be determined by the legislature of the State. It states that the
legislature of a State may by law endow the panchayats with such powers and
authority as may be necessary to enable them to function as institutions of
self government and such law may contain pro. visions for the devolution of
powers and responsibilities upon panchayats at the appropriate level, subject
to such conditions as may be specified therein with respect to [a] the
preparation of plans for economic development and social justice; and [b] the
implementation of schemes for economic development and social justice as may be
entrusted to them including those in relation to the matters listed in the
Eleventh Schedule.

The
Eleventh Schedule mentions as many as 29 matters some of which are necessary to
be enumerated here to point out that it is only a financially and
administratively viable unit which can undertake the schemes of development
relating to them. They are:

[15]
Social welfare, including welfare of the handicapped and mentally retarded and

[16]
Welfare of the weaker sections, and in particular of the Scheduled Castes and
261 the Scheduled Tribes.

16.
Article 243-H speaks of power that the State legislature may give to the panchayats
to levy, collect and appropriate taxes, duties, tolls and fees and also of
assigning such of them as arc levied and collected by the State Government, to
provide for grants-in-aid from the Consolidated Fund of the State and also to
provide for the constitution of Funds for crediting all moneys received,
respectively by or on behalf of the panchayats and for the withdrawal of the
moneys there from. Article 243-1, among others, provides for the constitution
of Finance Commission by the Governor of the State to review the financial
position of the panchayats at the end of every five years.

Article
243-J requires the State to make law to make pro- vision with respect to the
maintenance and auditing of the accounts of the panchayats.

17.
Article 243-K provides for a State Election Commission to conduct, supervise,
direct and control the elections in- cluding the electoral rolls. Article 243-0
states that the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies made or purporting
to be made under Article 243-K, shall not be called in question in any court,
and no election to any panchayat shall be called in question except by an
election petition presented to such authority and in such manner as is provided
for by or under any law made by the Legislature of a State. It is in the light
of the aforesaid provisions of the Constitution that we have to examine the
provisions of the State Act.

18. As
stated earlier the State enactment, viz, the U.P. Panchayat Raj Act, 1947, has
been amended and brought upto date to bring it in conformity with the amended
provisions of the Constitution, viz., Article 243 to Article 243-0.

Section
2 [g] of the Act accordingly defines 'Gram Sabha' to mean a body established
under Section 3 of the Act consisting of persons registered in the electoral
rolls re- lating to a village comprised within the area of a gram panchayat,
and 'gram panchayat' has been defined under Section 2 [h] to mean the gram panchayat
established under Section 12 of the Act. Section 2 [hh] of the Act defines
Finance Commission to mean the Finance Commission constituted under Article
243-1. Section 2 [hhh] defines 'Kshettra Panchayat' which is the panchayat at
the intermediate level, and it has the same meaning as is assigned to it under
clause [6] of Section 2 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961 whereas 'Zila Panchayat' which is the district level panchayat
will have the meaning assigned to it under the said Adhiniyam by clause [11] of
Section 2 thereof Section 2 [kk] defines 'State Election Commission' to mean
the State Election Commission referred to in Article 243-K of the Constitution.

19.Section
2 [t] of the Act defines 'village' to mean any local area recorded as a village
in the Revenue record of the district in which it is situate and includes any
area which the State Government may, by general or special order, declare to be
a village for the purpose of the Act.

20.
Section 3 of the Act provides for the establishment of Gram Sabha for a village
or a group of villages by such name as may be specified. It also states that
where the gram sabha is established for a 262 group of villages, the name of
the village having the largest population, shall be specified as the name of
the gram sabha.

21.
Section 5-A gives the disqualifications of a person from being chosen as and
for being a member of grain panchayat. Section 6 states that a member of the
gram panchayat shall cease to be such member if his name is deleted from the
electoral roll of the constituency.

Section
9 states that for each territorial constituency of a gram sabha an electoral
roll shall be prepared in accordance with the provisions of the Act under the
superintendence, direction and control of the State Election Commission and
that it shall be published in the prescribed manner and shall, subject to any
alteration, addition or modification- made under or in accordance with the Act,
be the electoral roll for the territorial constituency concerned. It also gives
the qualifications for being an elector and states that every person who is not
less than 18 years of age on the first day of January of the year in which the
electoral roll is prepared, will be entitled to be registered in the electoral
roll for the territorial constituency. It is not necessary to refer to the
other provisions of the said section regarding the qualifications, except to
sub-section 11 thereof which states that the State Election Commission may for
the purposes of preparation of the electoral roll for a territorial
constituency adopt the electoral roll for the Assembly constituency prepared
under the Representation of the People Act, 1950 for the time being in force so
far as it relates to the area of that territorial constituency.

Section
9-A provides that a person whose name is entered in the electoral roll for the
territorial constituency is entitled to in any election and is eligible for
election nomination or appointment to any office in the gram panchayat.
However, a person who has not completed the age of 21 years shall not be
qualified to be elected as a member or office bearer of the gram panchayat.

22.
Section 11 provides for the meetings and functions of gram sabha. Subsection
[3] thereof speakers of the functions of gram sabha which, among others,
consist of considering

[a]
the annual statement of accounts of the gram panchayat, the report of
administration of the preceding financial year and the last audit note and
replies, if any, made thereto,

[b] the
report in respect of development programmes of the Gram Panchayat relating to
the preceding year and the development programmes proposed to be under- taken
during the current financial year;

[c] the
promotion of unity and harmony among all sections of society in the village,

[a] mobilising
voluntary labour and contributions for the community welfare programmes;

[b] identification
of beneficiaries for the implementation of development schemes pertaining to
the village; and

[c] rendering
assistance, in the implementation of development schemes pertaining to the
village.

23.
Section 11-A provides for Pradhan and Up-Pradhan of gram panchayat who are to
be, chairperson and vice- chairperson respectively thereof under the Act. It
also provides for reservation of offices of Pradhans for the Scheduled Castes,
Scheduled Tribes and the backward classes.

Section
11-B provides for the direct election 263 of Pradhan or chairperson by the
electorate in the panchayat area from amongst themselves. Section 11-C provides
for election of Up-Pradhan by the members of the gram panchayat from amongst
themselves. The term of both the Pradhan and Up-Pradhan is co-terminus with
that of the grain panchayat.

24.Section
11-F provides for declaration of panchayat area and states that the State
Government may by notification de- clare any area comprising a village or group
of villages having so far as practicable, a population of 1000 to be a panchayat
area by such name as may be specified. The first proviso to the said section,
however, states that for the purposes of declaration of a panchayat area no
revenue village or any hamlet thereof shall be divided. The second proviso
makes a provision for the hill districts of the State and states that if a
village or group of villages does not have population of 1000, the State
Government may declare the area within a radius of 5 kms. from the centre of
the village to be panchayat area though such area may have a population of less
than 1000. Sub-section [2] of the said section also gives power to the State
Government to modify the panchayat area or to alter the name of the area or to
declare that any area shall cease to be a panchayat area on the request of a
gram panchayat concerned or otherwise.

25.Section
12 provides for the establishment of gram panchayat for every panchayat area.
Section 12 [1] (c) states that the grain panchayat shall consist of a panchayat
and in case of a panchayat area having a population of [1] one thousand, the panchayat
will have nine members, [ii] where the population is more than one thousand but
not more than two thousand,it will have eleven members, [iii] when the population
is more than two thousand but not more than three thousand, it will have
thirteen members; and [iv] when the population is more than three thousand, it
will have fifteen members. Thus Section 12 [1] [c] read with Section 11-F-[1],
gives a parameter of the size of the panchayat area mainly on population basis
in the non hill areas and on geographical basis in the hill areas and provides
that there shall be a panchayat of a Pradhan and nine members for at least
every village in the non hill area having a population of 1000, and of even
less in the hill area. The territorial constituencies for election as members
to the gram panchayat are to be formed in such a manner that the ratio between
the population of each constituency and the number of seats allotted to it,
shall so far as practicable, be the same throughout the panchayat area. Each
territorial constitu- ency of a gram panchayat is to be represented by one
member in the gram panchayat. Not less than 1/3rd of the scats earmarked for
Scheduled Castes, Scheduled Tribes and backward classes under sub-section [5]
(a) are to be reserved for the women of those categories whereas not less than
1/3rd of the total number of scats in the gram panchayat shall be reserved for
women.

26.The
superintendence, direction and control of the conduct of the election to the
office of the Pradhan and Up-pradhan or a member of the gram panchayat is
entrusted by section 12-BB to the State EIection Commission. An application for
questioning the elections is to be made to such authority as may be prescribed.
Section 12. I bars the jurisdiction of civil 'courts to question the legality
of any action taken or any decision given by an officer or author- 264 ity.
Section 14 provides for the removal of Pradhan and Up- Pradhan in certain
circumstances. Section 15 mentions, as many as 30 functions of gram panchayat
which are of the same pattern as those mentioned in the Eleventh Schedule of
the Constitution, to some of which we have made a reference earlier. The only
additional function entrusted under the Act is of the preparation of plan for
economic development of the area of the Gram Panchayat.

27.
Section 15A requires the gram panchayat to prepare every year a development
plan for the panchayat area and to submit it to the Kshettra panchayat
concerned and Section 16 makes provision for assigning to it any or all die
following func- tions, viz., [a] management and maintenance of a forest
situated in the Panchayat area; [b] management of wastelands, pasture lands or
vacant lands belonging to the Government situated within the Panchayat area,
[e] collection of any tax or land revenue and maintenance of related records.
Section 17 refers to the powers of gram panchayat as to public streets,
waterways and other matters.

Section
18 provides for the improvement of sanitation. Sec- tion 19 provides for
maintenance and improvement of schools and hospitals. Section 20 provides for
establishment of primary school, hospital, dispensary, road or bridge for a
group of gram panchayats. Section 24 provides for power of a gram panchayat to
contract for collection of taxes and other dues. Section 25 gives power to the
gram panchayat to appoint such staff as may be necessary. Section 32 provides
for the constitution of a Gaon fund for each gram panchayat.

Section
32-A gives power to the State Government to consti- tute a Finance Commission.
Section 34 states that all properties situated within the jurisdiction of a
gram panchayat shall vest in and belong to the gram panchayat.

Section
36 gives power to the gram panchayat to borrow money whereas Section 37 gives
it power to levy taxes and fees.

It is
not necessary to refer to other provisions of the Act for our purpose.

28.We
may now refer to the criticism by the High Court of certain provisions of the
Act as being ultra vires the Constitution.

29.As
stated earlier, the main thrust of the High Court's judgment is against the
concept of 'Village' as incorporated in the definition of "village"
in Section 2 [t] of the Act.

The
High Court has found fault with the said definition on two counts. According to
it, firstly, Section 2 [t] is in- consistent with the concept of village as
contemplated by Article 243 [g] of the Constitution and secondly, whereas the
said Article requires the Governor of the State to specify the village, Section
2 [t] gives the power to the State Government to declare it, 30.As regards the
alleged difference in the definition of "village" in the Act and in
the Constitution, we have already referred to the fact that Article 40 of the
Constitution does not define 'village' as such. It only refers to the Organisation
of "village panchayats" as units of self-government.

31.'Village'
has been defined in the Shorter Oxford English Dictionary [1993 Edition] to
mean "a self-contained group of houses and associated buildings, usu. in a
country area-, an inhabited place larger than a hamlet and smaller than a
town;... a small self-contained district or community 265 within a city or
town, regarded as having features characteristic of a village". The Law
Lexicon by P. Ramanatha Aiyar [1987 Ed.] states that 'village' includes [a] a
village-community; [b] village-lands; [c] rivers passing through or by
village-lands; and [d] a group of villages. The expression 'village' connotes
ordinarily an area occupied by a body of men mainly dependent upon agriculture
or occupations subservient thereto. When the area is occupied by persons who
are engaged mainly in commercial pursuits, rural areas in the vicinity of a
town grow into a suburb of the town.

32.
The Encyclopedia Americana [1983 Ed.] [Vol. 28] states that village is "a
type of community, generally small but without exact or commonly accepted size
limits. Generally, in the United States, the village is thought to be
intermediate between the hamlet [a settlement with several families and some
form of commerce but no more than 50 people] and the town [generally over 1,000
people].

Dealing
with the origin and evolution village, it states that- "the village is the
typical form of rural settlement in most of the world in Europe [except for
Great Britain] 'in Asia, in Africa, and in much of South America..... It often
seems to be the result of the settlement of lands that previously were only
thinly occupied by indigenous populations, but probably also derives from the
emergence of clear-cut private proprietorship of land. In much of Europe and in
many other areas of the world, communal land ownership prevailed in the past,
and this property arrangement was one basis for the village form of rural settlement,
the community being set amid the tillage and grazing lands." x x x x
" Growing awareness of the nearly universal appearance of the agricultural
village prompted many social theorists in the 19th century to suggest that such
Communities represented a universal stage in human evolution. Such simplifying
theories lost support as evidence of the great diversity of human cultures and
the Paths of change was accumulated. The interpretation of the village pattern
is now more nearly a functional one. With settled agriculture, village
orientation provides mutual protection, sociability, a measure of economic specialisation
[such as handicrafts], and at least the of local government.

Since
size-limits will not precisely distinguish villages from other types of communities,
the question arises as to whether the term has a precise All communities or
settlements called villages in popular language or technical studies cannot be
brought within a common definition....

Generally,
however, a village isa residential and trading center for a predominantly
agricultural its social controls are predominantly traditional and informal;
more formal administration and government arc typi - cal of cities and towns.
Its self-sufficiency may be nearly complete, as in some parts of the Far East
and Latin America, or seriously impaired by modem tranportation, communication,
and agencies of central government. The population of the village, unlike that
of most cities and many towns, is self-recruited rather Om immigrant. This, and
the traditional informality of social standards and controls, lends a distinct
quality of homogeneity that the more cosmopolitan center does 266 not have.

The
collapse of the theory that the village is the basic community of all
civilizations did not end the idealization of the village. Yet even the
informal and traditional social controls of the village can be extremely
restrictive, certainly more so than the fomal tolerance of difference that the
cultural heterogeneity of the city encourages or requires. And it cannot be
assumed that villages are democratic. European villages are often dominated by
one or a few families, some of which may claim descent from feudal rulers. The
village in India is often ruled by a council [panchayat] of the leading caste
or by a few principal landlords. Even in the United States, with its short
history and absence of an officiallyu recognized aristocracy, leading families am
more likely to receive deference in villages than in larger and more impersonal
communities. The integration of village life, or lack of social problems and
tensions, has also been ex- aggerated. Conflicts may smolder or burn brightly,
all the more because the parties know each other and personalize the antipathy.

In
Europe and Asia, the village has exhibited a remarkable power of survival
amidst currents of rapid social change. Rural America has been much more
profoundly affected bythe encroachments of an urban-industrial civilization.
Many small towns, technically villages, have virtually di--appeared as their
economic and other social functions have been absorbed by nearby cities.
Village life may endure a while longer in the United States, but the sense of
continuity and communal in- tegrity are difficult to maintain with high rates
of residential mobility and in the face of steady inroads of an essentially
urban civilization.

The
village community may be defined as a group of people who live ill permanent
dwellings in a defined territory which includes arable land sometimes held in common
.

If
cattle is kept, as is often the case, it is pastured on non-cultivated
meadowland over which the community claims right. Further characteristics
include a predominance of ag- ricultural occupations, a close relationship to
the natural environment, strong internal cohesion, and a relative absence of
internal stratification and of occupational, territorial, and vertical social
mobility. As such, the village is a specific type of rural settlement, but not
the only One.

x x x x
x The scientific study of the village community did not start until the middle
of the 19th century...... Sir Henry Maine [1822-1888], one of the first English
writers on this topic, held the theory that the village community was
originally founded by a group of kin related people who settled independently
in a specified spot. In time, the original households branched out into many
separate ones, clearing more load as the need arose.

Occasionally
they included strangers, who were sometimes adopted but more often relegated to
second class membership, tolerated rather that accepted. If one family became
extinct, its share of land was returned to the common stock. Only in later
times, under pressure of more highly developed political structures, did the
village community become feudalistic.

the
land was then owned by a ruler who received tribute in kind and promised
protection in return. Often the responsibilities of supervision and collection
were transferred to other members of the aristocracy. Maine based his case for
this presumed development upon analysis of Roman law [Ancient Law, 1861] and
upon practices in Russia, southeastern European countries, anti specifically
India, where he had carried out extensive field research [Village com 267 munities
in the East and West, 1871].

Several
other scholars criticized Maine's theoretical reconstructions-Modern
anthropologists and sociologists take the position that both developments took
place.

They
recognize that the evolution and structure of human settlements in general, and
of village unities in particular, are closely connected with specific
historical developments and ecological, sociopolitical, economic and religious
circumstances which are different from place to place. With this recognition,
questions of absolute origins have generally been replaced by an increased
interest in the structure and function of village communities, in an attempt to
gain a basic understanding of the essential nature of living arrangements
therein.

x x x x
x As their characteristic features, peasant villagers show strong internal
cohesion and tendencies to restrict membership to those born within the
community. Rules of local endogamy sometimes reinforce this trend.

Membership
in the community is demonstrated by participation in religious rituals, which
frequently stress the power of the community to deal with the supernatural
rather than reliance upon individual piety. Economically, a peasant produces
mainly for his own household's consumption, although he also uses part of his
product to exchange in a market for other goods and services. These markets are
often local and differ in structure from those in the cities. Although some
city- produced goods reach the peasant level, there is a tendency to limits the
flow of city goods into the community.

Politically,
peasant villages are now usually parts of national states and theoretically
possess the rights and duties involved in such membership. But the village
community has frequently retained mechanisms of internal control, whether
through government-approved local leadcis or through informal leadership and
community sanctions. Emotional attach- ments face inward. The individual's
first loyalty is to his family, the to his com- muaity, and only then to
whatever is beyond.

The
various elements of this characterization may be developed more strongly in
some villages than in others, but as a type they are recognizable and clearly
distinct from tribal groups, farming settlements, and city formations. "

33. It
is common knowledge that the needs of the people change with the development in
the economic, scientific and technologic fields as also with the developments
in transport and communication. With them, the concept of selfsufficiency and
the means, mode and range of self- governance also change. What is more, the
units of self- governance at the lower level being interrelated and inte-
grated with those at the higher levels as parts of the whole scheme of
administration and development in the State, have to respond to and fall in
line with the growth in the size and operation of the units at the higher level
to form a coordinated democratic polity and administrative machinery.

The
concept of grassroot or lowest level administration must, therefore,
necessarily change with the advance and progress at other levels. The governing
units at all levels have to fit in in a pattern, and a scheme for
administration both for law and order and economic growth. They have to act as
vehicles of overall stability and progress. For that purpose, their
constitution and functioning have to be in conformity with the larger social,
political and economic goals.

34.
Hence there cannot be any immu- 268 table social, political, economic or organisational
concept of village as a self governing unit. In a developing country like ours,
where the population is growing fast, where the society is in ferment on all
fronts, where divisive forces of all kinds abound, where the vast majority of
population is illiterate and is the victim of ignorance, superstition,
blind-faith, biases and prejudices, and is shackled by tradition, and
irrational customs and practices, there is an urgent need to evolve means to
unite and integrate the society, to expose the populace to larger and higher
goals, to imbibe in them the wider perspectives and to forge a socially cohesive
front for breaking the barriers of race, caste, class, religion and region
rather than to pander to the age-old, self-centered physical and mental
barriers. As stated earlier, Article 40 not only does not define
"village" but also does not require that the village panchayats
should be organised on the basis of any particular concept of village much less
the vintage concept which appears to have appealed to the High Court. There is
further nothing in the Mahathma Gandhi's advocacy of "village panchayat raj"
from which the High Court has taken support to suggest that the village that Mahatmaji
had in mind was of a particular description or dimension. It is amusing in this
respect to note that the High Court in support of its concept of village has
even gone to the extent of observing that "it must be remembered that in
con- sidering the aspirations of the people, more so at the first level of
democracy, the phenomena of a case of identity of the people, their sentiments,
feelings and chauvinism, cannot be forgotten" the considerations which
were, with respect, farthest from the mind of Mahathmaji and against which he
fought throughout his life. If separate identities, chauvinism, divisible
sentiments and feelings arc nurtured from the grassroot level, they are bound
to erode the foundation of the unity and integrity of the coun- try and should
be the last thing on the social and political agenda of the country. On the
other hand, the need of the day is to create social, political and economic
entities crossing all barriers and wedded to the nationhood as the ultimate
goal. Anthropological and sociological entities may be natural so far as the
blood and familial relationships and attachments go and have their place in
certain limited spheres. But they have no place while shaping democratic
political and administrative units. Nor are they necessarily conducive to
social and economic progress. On the other hand, they may prove and have in the
past proved a positive hindrance to them. Although, therefore, it is true that
most of the villages have developed with the initial settlement of a family or
a group of families belonging to either the same tribe or ethnic group and in
that sense have their historical and sociological identity, these identities
are not necessarily healthy or desirable for promoting wider and diverse
interests and attaining larger goals. On the other hand, they often prove
insurmountable blockades to promoting the ideals enshrined in the Preamble of
our Constitution, viz., social, political and economic justice; liberty of
thought and expression, belief, faith and worship; equality of status and of
opportunity; and fraternity assuring the dignity of the individual and the
unity and integrity of the nation. Sometimes, smaller the social, political and
administrative entities, the greater the dominance of one section or the other
and deeper the prejudices. The need is to organise viable social, political,
economic and administrative units of optimum size 269 at the lowest level on a
rational basis keeping in mind the size of population, the needs of social and
economic development, availability of resources, the transport and
communication facilities, convenience of administration and other relevant
factors. Old is not always gold and mere historic accidents through which the
villages of the concept of High Court have developed, cannot justify their perpetua-
tion as political and administrative units to attain the modem goals of social
and economic progress or furnish the rationale for their survival as basic
democratic entities.

What
is further forgotten is that over the years, not only the population in the
rural areas has grown enormously but the complexion of the rural areas has also
undergone a change. With the increasing pressure on land, there has been a
steady migration from the rural to the urban and semi-urban areas. Some
villages are almost deserted while others survive much below the poverty line.
At the same time, some have emerged as small pockets o comparative prosperity,
thanks to marginal industrial and commercial activities around them and the
nearness to the urban and semi-urban areas. There is further a limit to the
number of village panchayats which may be constituted with all the overhead
expenses involved in the exercise which must have a rational relation to the
result sought to be achieved. In the State o U.P., there are 1,20,000 villages.
Before the present exercise of constituting the village panchayats under the
Act, there were 74,000 gram sabhas which are now reduced to 55,000. With the
nature and range of functions entrusted to the new village panchayats under the
Act, and the expenditure that may have to be incurred in constituting and
running them, it can hardly be said that their number, structure and Organisation
militate in any way against the concept of democracy and the principle of
self-governance.

Section
11-F (1) by laying down for non-hilly areas a norm of a village panchayat for
every 1000 population as far as practicable and for hilly areas, for every 5 kilometres
radiusdistance, has in fact tried to observe the principle of self-governance
as closely as possible.

35.
The first premise of the High Court's reasoning is, therefore, faulty and it
has led it to build an edifice which is equally defective. It is for this
reason that we arc unable to appreciate the portions of the impugned judgment
dealing with the sentiments, feelings, chauvinism and will of the people [pages
16-201; holding that power to specify villages vests with the people and not
with the State Government and that the villages cannot simply be a revenue
village [pages 21 to 25]; holding that the Governor is obliged to specify a
village giving due regard to the wishes of the people [pages 26-27]; holding
that provisions of the Act referring to establishment of Gram Sabha for a group
of villages are ultra vires, and beyond the intention of the Constitution
[pages 3233]; that status of Gram Sabha has been compromised and belittled in
the Act itself [pages 37-381; holding that the Act in explaining the expression
'gram sabha' offends the Constitution and negates the con- cept of local
self-government [page 40]; and stating that Section 11-F gives rise to
misunderstanding as it has scope for overlapping and duplication in notifying
and declaring areas comprising a village or group of villages into panchayat
area [pages-59].

36. As
pointed out above, Article 243 [g] 270 of the Constitution defines village to
mean "a village specified by the Governor to be village and includes a
group of villages so specified". In other words, according to this
definition, any existing village or a group of the existing villages may be
specified by the Governor as a village for the purposes of organising a village
panchayat.

The
definition begs the question as to what is a village which the Governor can
specify as a village for the purposes of constituting the "village panchayat".
It is not disputed that almost all villages in the State have been recorded in
the revenue records of the respective district,% in which they are situate. No
material has been placed on record to show that villages have been recorded as
such in any other record. There may be some villages and new settlements which
are not so recorded. There is, therefore, nothing wrong if the Governor
specifies the revenue villages as villages and in addition also those villages
and settlements which are not so recorded in the revenue records as villages
for the purpose of constituting village panchayats. The "revenue
village" is, therefore, a documented ready-made concept of village and the
Governor while acting under Ar- ticle 243 [g] for specifying the village may
adopt the same as village. No restriction has been placed by Article 243 [g] on
the Governor for accepting the revenue village as a village for the purposes of
constituting village panchayat.

In
fact, the Governor has been empowered by the said constitutional provision to
declare even a group of villages as a village. If this is so, we are unable to
appreciate as to why the definition of village in Section 2 [t] will fall foul
of the provisions of Article 243 [g]. Section 2 [t] not only speaks of villages
recorded in the revenue records as such but also includes in the definition,
any area which the State Government may by general or special order declare to
be a village for the purposes of the Act. The concept of village is not foreign
either to the Constitution or to the State legislation. Apart from the U.P.
Land Revenue Act, the concept of village finds place in other State enactments
such as U.P. Village and Road Police Act, 1873 and U.P. Village Sanitation Act,
1892, U.P. Village Courts Act, 1892, U.P. Village Panchayats Act, 1920 which
was replaced by the unamended U.P. Panchayat Raj Act, 1947, U.P. District
Boards Act, 1922, U.P. Local Rates Act, 1914 which latter two Acts were
replaced by the U.P. Kshettra Samities and Zila Parishads Adhiniyam, 1961. If,
therefore, there is no restriction placed by the Constitution on the Governor
in accepting any inhabited rural are as a village, it is difficult to appreciate
how the Act is violative of the Constitution when the State Government declares
any area including a revenue village as a village. In any case, the Court
cannot substitute its concept of village for that of the State Government.

37. As
regards the objection of the High Court that whereas Article 243 [g] requires
the Governor to specify the village, the Act gives this power to the State
Government to do so, the High Court has failed to notice the provisions of the
Constitution which equate the Governor with the State Government in exercise of
his functions except where he is by or under the Constitution required to
exercise the func- tions in his discretion. In this connection, we may refer to
the provisions of Article 163 of the Constitution which state that there shall
be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his 271 functions except when they are to be
exercised by him under the Constitution in his discretion. It is also not disputed
that when a Minister takes action, according to the rules of business, it is
both in substance and in form the action of the Governor. Under the
Constitution, therefore, while exercising the non-discretionary functions, the
Governor cannot act without the aid and advice of the Council o Ministers. To
do so will cut at the very root of the cabinet system of Government we have
adopted. In this connection, we may refer to the decision of this Court in Samsher
Singh v. State of Punjab [(1974) 2 SCC 831] where the Constitution Bench of
seven learned Judges has held that the executive power of the State is vested
in the Governor under Article 154 [1] of the Constitution. The expression
'State' occurs in Article 154 [1] to bring out the federal principle embodied
in the Constitution. Any action taken in the exercise o the executive power of
the State vested in the Governor under Article 154 [1] is taken by the
Government of the State in the name of the Governor as will appear in Article
166 [1]. There arc two significant features in regard to the executive action
taken in the name of the Governor.

First,
Article 300 states, among other things, that the Governor may sue or be sued in
the name of the State. Second, Article 361 states that proceedings may be brought
against the Government of the State but not against the Governor. The reason is
that the Governor does not exercise the executive functions individually or
personally.

Executive
action taken in the name of the Governor is the executive action the State.
Paragraph 48 of the said judg- ment explains the position of law in that behalf
succinctly as follows:

"The
President as well as the Governor is the constitutional or formal head. The
President as well as the Governor exercises his powers and functions conferred
on him by or under the Constitution on the aid and advice of his Council of
Ministers, save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. Wherever the
Constitution requires the satisfaction of the President or the Governor for die
exercise by the President or the Governor of any power or function, the
satisfaction required by the Constitution i s not the personal satisfaction of
the President or Governor but the satisfaction of the President or Governor in
the constitutional sense in the Cabinet system of Government, that is,
satisfaction of his Council of Ministers on whose aid and advice the President
or the Governor generally exercises all his powers and functions. The decision
of any Minister or officer under Rules or Busi- ness made under any of these
two Articles 77 [3] and 166 [3] is the decision of the President or the
Governor respectively. These articles did no provide for any delegation.

Therefore
the decision of a Minister or office under the Rules of Business is the
decision of the President or the Governor. "

38.
Admittedly, the function under Article243 [g] is to be exercised by the Governoron
the aid and advice of his Council of Ministers. Under the rules of business
made by the Governor under Article 166 [3] of the Constitution, it is in fact
an act of the Minister concerned or of the Coun- cil of Ministers as the case
may be. When the Constitution itself thus equates the Governor with the State
Government for the purposes of the relevant function, the provision in Section
2 [t] which realistically gives the power of declaring the village to the State
Government, cannot be 272 said to be inconsistent with or contrary to Article
243 [g].

Further,
Section 3 [60] (c) of the General Clauses Act, 1873 defines 'State Government'
to mean Governor which definition is in conformity with the provisions of the
Constitution.

We
are, therefore, unable to appreciate the conclusion of the High Court that
Section 2 [t] is ultra vires Article 243 [g] of the Constitution.

39. We
are also unable to appreciate the reasoning of the High Court that under the
Act the State Government cannot declare the village by special or general order
as required by Section 2 [t] because Article 243 [g] of the Constitution
requires the Governor "to specify the village by a public
notification". Admittedly, the general or special order issued by the
State Government is always published in the official gazette. In any case, the
order declaring the villages for the purposes of Section 2 [t] in the present
case was gazetted. There is a hierarchy of legal instruments such as law,
ordinance, order, bye-law, rule, regulation and notification. It is recognised
even by Article 13 [3] [a] of the Constitution and Section 3 [29] of the
General Clauses Act, 1897. All the orders, rules, regulations and notifications
when made or issued by the State Government are made or issued in the name of
the Governor by the functionary of the concerned Ministry named in the rules of
business as per the provisions of Article 166 of the Constitution. We have
already pointed out that in view of the provisions of Article 154 and of
Article 163 read with Article 166 of the Constitution, 'Governor' means the
Government of the State and all executive functions which arc exercised by the
Governor except where he is required under the Constitution to exercise the
functions in his discretion, are exercised by him on the aid and advice of the
Council of Ministers. Hence, whether it is a notification issued by the
Government or a general or special order issued by the State Government,
constitutionally both are the acts, of the Governor.

40. In
the present case, by the notification dated 9th May, 1994 issued under Section
96-A of the Act by die Governor, the powers of the State Government under
Section 3 and Section 11-F of the Act were delegated to the Director, Panchayat
Raj, U.P., Lucknow [hereinafter referred to as the `Director']. Pursuant to
this delegation, on 4th August, 1994 the Director issued notification
establishing gram sabhas under Section 3 and declaring panchayat areas under
Section 11-F of the Act. This was a composite notification both for
establishing gram sabhas and declaring panchayat areas. It is true that neither
in the notification dated 9th May, 1994 delegating powers under Sections 3 and
11-F to the Director nor in the notification dated 4th August, 1994
establishing grain sabhas and declaring the panchayat areas, there is a mention
either of Section 2 [t] of the Act or of the power delegated to declare the
village under the said provision, However, keeping in mind the scheme of the
Act and the provisions of Sections 2 [t], 3 and 11-F, it is clew that Section 2
[t] merely defines 'village' and by itself does not give power to the State
Government to declare the village. It states that village means "any local
area recorded as a village in the revenue records of the district in which it
is situate and includes any am which the State Government may by general or
special order declare to be a village for the purposes of the Act. The said
section is therefore in two parts. By the first 273 part, it adopts the
villages recorded in the revenue records of the districts as villages for the
purposes of the Act.

By the
second part, it accepts as village any area which the State Government may for
the purposes of the Act declare as such village. There is no separate provision
giving power to the State Government to declare any area as village for the
purposes of the Act. The legislature, probably rightly thought that since the
power given to the State Government by Section 3 to establish a gram sabha and
by Section 11-F to declare the panchayat area comprise in them the power to
declare the village within the meaning of Section 2 [t] and particularly of the
second part of it, it was not necessary to make an independent provision to
enable the State Government to declare the village for the purposes of the Act.
It cannot be said that this view of the State Govern- ment is wrong for it is
not possible to establish a gram sabha or declare the panchayat area unless the
village for which such gram sabha is to be established and its area are first
determined. The notification which is issued on 4th August, 1994 further shows that the gram sabha which is inappropriately
tided as gram panchayats are established for villages within the meaning of
Section 2 [t] and they com- prise the area either of one revenue village or of
more revenue villages than one. Although, therefore, the criticism by the High
Court with regard to both the notifications dated 9th May, 1994 and 4th August,
1994 delegating the power, and establishing gram sabhas and declaring panchayat
areas may be justified in that they do not refer to Section 2 [t] and the
latter notification has given inappropriate tides in columns 2 and 3 thereof,
according to us, for the reasons stated above, the said defects do not in any
way affect the legality of the said notifications. All that can be said in that
connection is that they could have been correctly and adequately worded.

However,
in construing legal documents, it is not their form but their substance which
has to be taken into consideration. Thus construed we are more than satisfied,
that the two notifications are in substantial compliance with the provisions of
the Act and have to be construed as such.

41.We
also find no merit in the contention that the first part of Section 2 [t] which
defines village to mean any local area recorded as a village in the revenue
records of the district in which it is situate, goes counter to the provisions
of Article 243 [g] in that it forecloses the au- thority of the Governor to
specify the village for the purposes of establishing a gram panchayat as
envisaged by Part IX of the Constitution. The argument ignores that whereas the
Constitution permits the Governor to specify village by a notification, it does
not prevent the State from enacting a law for the purpose. As pointed out
earlier, the notification issued by the Governor is in fact a notification
issued by the State Government. An enactment of the legislature is certainly a
higher form of legal instrument than a notification. What is further, the Act
has received the assent of the Governor on 22nd April, 1994.

Hence,
there is not only no conflict between the provisions of Sections 2 [t] of the
Act and those of Article 243 [S] but there is an over-compliance with the
provisions of the Constitution.

42.The
High Court has also held that there is a substantial difference between the
definition of 'gram sabha' in Article 243 [b] of the Constitution and in
Section 2 [g] of the Act and, therefore the 274 latter definition is ultra vires
the provisions of the Constitution. Frankly, we have been unable to understand
the reasoning of the High Court in that behalf Article 243 [b] of the
Constitution defines 'gram sabha' to mean "a body consisting of persons
registered in the electoral rolls relating to a village comprised within the
area of panchayat at the village level" whereas Section 2 [g] of the Act
defines 'gram sabha' to means "a body established under Section 3 of the
Act consisting of persons registered in the electoral rolls relating to village
comprised within the area of a gram panchayat". The High Court has taken
exception to the word 'established' in Section 2 [g] of the Act. It must be
remembered in this connection that there is no provision in Part IX of the
Constitution such as Section 3 of the Act for establishing a gram sabha for a
village or a group of villages by such name as may be specified, and to name
the gram sabha in the name of the village having the largest population when
the gram sabha is established for a group of villages. One may have quarrel
with the use of the expression 'established' in this connection. For it is true
to say that gram sabha is nothing but the electorate of the village or villages
comprised within the area of a gram panchayat and in that sense there is
nothing to be established as far as gram sabha is concerned. What is to be
established is the panchayat for a particular area and for the electorate
constituted in that area. The moment the panchayat area is declared the
electorate comprised in it gets automatically constituted into the gram sabha.
It no longer remains merely an electorate. Whether such constitution is called
establishment is immaterial. Thes` are matters of description. Having followed
a particular pattern, the legislature has used the expression 'established'
also in connection with the gram sabha along with the panchayat. We, however,
do not see how the use of the said expression makes any difference to the
intendment of the said provision and how the said provision goes counter to the
provisions of the Constitution. Surely, it is not suggested that the grain sabha
that the Act seeks to establish does not consist of the entire electorate in
the panchayat area or excludes some of it. So long as, therefore, the
definition given in Section 2 [g] and the provisions of Section 3 of the Act do
not in any way detract from the provisions of Article 243 [b] or their
intendment, they cannot be held ultra vires the provisions of the Constitution.
We are, therefore, unable to agree with the finding of the High Court in that
respect.

43.
The High Court has also held that the provisions of Section 3 of the Act which
empower the State Government to establish a gram sabha for a group of villages
by the name of the village having the largest population would result in the
loss of identity of the village or villages with smaller population comprised
in the gram sabha. The High Court has committed an obvious error here in that
it has identified the village with the gram sabha and the village panchayat.

When
villages are united to form a gram sabha and a village panchayat, they do not
lose their name and identity as separate villages. They come together only for
the purpose of running the gram panchayat. In that process, they may also stand
to gain inasmuch as they may have access to more resources, and the benefit
from bigger schemes and projects and availability of better infrastructure and
equipment to implement the projects and schemes. It is 275 not, therefore,
possible to agree with the High Court that the identity of the smaller villages
is lost because they are grouped together for establishing a common gram sabha
or gram panchayat.

44.The
High Court has also declared the provisions of section 2 [11] read with those
of Section 11-F ultra vires the provisions of Article 243 [e], because
according to the High Court, the provisions of the said Article require that at
first, a territorial area should be carved out to make it the panchayat area
and then the population of the area should be adjusted so as to ensure uniform
ratio of representation as required by Article 243-C. Instead, the provisions
of Sections 2 [11] and 11-F carve out the panchayat area on the basis of
population alone and the basis for it is conspicuous by its absence in the Act
and this has created confusion. The representation of an area has to be
balanced to the ratio of the population in it and not the population to the
area. Territorial constituencies are sub-divisions of a panchayat area. A
densely populated area will automatically contain more seats while a sparsely
populated area will contain lesser seats than the densely populated area and
hence the provisions of the Act are ultra vires the Constitution. We are unable
to appreciate the reasoning of the High Court. Article 243 [e] defines 'panchayat
area' to mean "territorial area of a panchayat" and Article 243-C
speaks about the composition of panchayats and leaves it to the legislature of
a State to make provisions with respect to it. The only conditions that the
latter Article imposes on the composition of panchayat is firstly the ratio
between the population of the territorial area of the panchayat at any level
and the number of seats in the panchayat to be filled by election shall, as far
as practicable, be the same throughout the State. Secondly, the seats in the panchayat
have to be filled by direct election from the territorial constituencies in a panchayat
area and for this purpose the panchayat area has to be divided into territorial
constituencies in such a manner that the ratio between the population of each
constituency and the number of seats allotted to it have as far as practicable
to be the same throughout the panchayat area.

So
long as these conditions are complied with, the composition of the panchayat
that may be evolved by the State legislature cannot be faulted. We do not see
any material before us to suggest that these two criteria are breached or arc
sought to be breached. On the other hand, section 11-F of the Act has made
three provisions to conform to the norms laid down by the said Article, viz.,

[i] the
panchayat area would be such that as far as practicable, it will have a
population of 1000 throughout the state;

[ii] for
the purpose of the declaration of the panchayat area no revenue or any hamlet
thereof shall be divided and

[iii],
in the hill districts which are sparsely populated and spread over a vast terrain,
an area within a radius of 5 kms. from the centre of the village should be
declared as the panchayat area though the population comprised in the area may
be less than 1000. When Article 243 [e] defines, the "panchayat area"
to mean the territorial area of panchayat, it does not require that the panchayat
should be constituted on the basis of the area alone.

The
High Court has read otherwise in the said definition and has, therefore, fallen
in an obvious error. When the panchayat area is determined on the basis of
population inhabiting a particular area, that area will also be a panchayat
area within the meaning of the said Article. The provisions of the 276 Act,
viz., Section 2 [1] read with Section 11-F do no more than give effect to the
definition of panchayat area in Article 243 [e]. When the area includes the
whole of the village or a group of whole villages including the hamlets
thereof, keeping in view the uniform norm of the population of 1000 as far as
practicable, the panchayat area gets automatically demarcated by the areas of
the village or villages comprised therein.

45.It
is for the Government to decide in what manner the panchayat areas and the
constituencies in each panchayat area will be delimited. It is not for the
court to dictate the manner in which the same would be done. So long as the panchayat
areas and the constituencies are delimited in conformity with the
constitutional provisions or without committing a breach thereof, the courts
cannot interfere with the same. We may, in this connection, refer to a decision
of this Court in The Hingir-Rampur Coal Co, Ltd. and Others v. The State of Orissa and Others [(1961) 2 SCR 537]. In
this case, the petitionermine owners, had among others, challenged the method
prescribed by the legislature for recovering the cess under the Orissa Mining
Areas Development Fund Act, 1952 on the ground that it was un- constitutional.
The majority of the Bench held that the method is a matter of convenience and,
though relevant, has to be tested in the light of other relevant circumstances.

It is
not permissible to challenge the vires of a statute solely on the ground that
the method adopted for the recovery of the impost can and generally is adopted
in levy- ing a duty of excise.

46.What
is more objectionable in the approach of the High Court is that although clause
(a) of Article 243-0 of the Constitution enacts a bar on the interference by
the courts in electoral matters including the questioning of the validity of
any law relating to the delimitation of the constituencies or the allotment of
seats to such constituencies made or purported to be made under Article 243-K
and the election to any panchayat, the High Court has gone into the question of
the validity of the delimitation of the constituencies and also the allotment
of seats to them. We may, in this connection, refer to a decision of this Court
in Meghraj Kothari v. Delimitation Commission & Ors. [(1967) 1 SCR 400]. In
that case, a notification of the Delimitation Commission whereby a city which
had been a general constituency was notified as reserved for the Scheduled
Castes. This was challenged on the ground that the petitioner had a right to be
a candidate for Parliament from the said constituency which had been taken
away. This Court held that the impugned notification was a law relating to the
delimitation of the constituencies or the allotment of seats to such
constituencies made under Article 327 of the Constitution, and that an
examination of sections 8 and 9 of the Delimitation Commission Act showed that
the matters therein dealt with were not subject to the scrutiny of any court of
law. There was a very good reason for such a provision because if the orders
made under sections 8 and 9 were not to be treated as final, the result would
be that any voter, if he so wished, could hold up an election indefinitely by
questioning the delimitation of the constituencies from court to court.
Although an order under Section 8 or 9 of the Delimitation Commission Act and
published under Section 10 [1] of that Act is not part of an Act of Parliament,
its effect is the same. Section 277 10 [4] of that Act puts such an order in
the same position as a law made by the Parliament itself which could only be
made by it under Article 327. If we read Articles 243-C, 243-K and 243-0 in
place o Article 327 and sections 2 [kk], 11-F and 12-BB of the Act in place of
Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither
the delimitation of the panchayat area nor of the con- stituencies in the said
areas and the allotments of seats to the constituencies could have been
challenged or the Court could have entertained such challenge except on the
ground that before the delimitation, no objections were invited and no hearing
was given. Even this challenge could not have been entertained after the
notification for holding the elections was issued. The High Court not only
entertained the challenge but has also gone into the merits of the alleged
grievances although the challenge was made after the notification for the
election was issued on 31st
August, 1994.

47.While
supporting the judgment of the High Court, the respondents raised some
additional contentions. The first contention was that it was not competent for
the State Government under Section 96-A of the Act to delegate its power to the
Director, the delegation being in contravention of the provisions of Article
243 [g] of the Constitution.

We
have pointed out earlier that under the Constitution, Governor means the State
Government. Article 154 [1] enables the Governor to exercise the executive
power of the State either directly or through officers subordinate to him in
accordance with the Constitution. Hence by virtue of Article 163, the State
Government can exercise the power through its officers. Neither Article 243 [g]
nor any other provision in Part IX of the Constitution prevents the Governor
and, therefore, the State Government from delegating its power mentioned in the
said Part to any subordinate officer. The Act makes a specific provision by Section
96A thereof for the State Government to delegate all or any of its powers under
the Act to any officer or authority subordinate to it subject to such
conditions and restrictions as it may deem fit to impose. The State Government
by a notification issued on 9th May, 1994
under Section 96-A delegated its powers under Sections 3 and 11-F of the Act to
the Director. We have already pointed out that the power delegated under
Sections 3 and 11-F of the Act would impliedly include the power to declare
"village" under Section 2 [t] of the Act although the said section is
not mentioned in the notification specifically. Hence we do not see any
substance in this contention either.

48.A
part of the aforesaid contention was that the Director by his Circular dated 12th May, 1994 had delegated the func- tion of
delimiting the panchayat areas to the District Magistrates of various districts
which he could not have done since Section 96-A does not permit sub-delegation
of the powers given by the State Government. We are afraid that this contention
results from the incorrect appreciation of the contents of the said Circular.
By the said Circular, the Director had only asked the District Magistrates to
do the ministerial work of submitting the proposals for re- organisation of
grain panchayats according to the guidelines given in the Circular which were
in terms of the provisions of the Act. Those proposals were to be finally
processed by die Director himself and that is what the Director ultimately did
as 278 he himself took the final decision with regard to the reorganisation of
the existing gram panchayats constituted under the unamended Act and delimited
the panchayat areas.

In the
circumstances, there is no merit in the contention.

49.
The second contention raised on behalf of the respondents was that the
delimitation of the panchayat areas and gram sabhas was done without giving
adequate opportunities of being heard to the people in the areas concerned. The
lists of gram panchayats were published from 20th to 26th August, 1994 and objections were heard and
disposed of on 27th and 28th
August, 1994 and the
final lists of the panchayat areas and gram sabhas were published on the 31 st
August, 1994. While it was conceded on behalf of the State Government that the
proposals for delimiting the panchayat areas were published and finalised as
above, it was pointed out on their behalf that this was done bona fide to
complete the elections on time and without any ulterior motive, since the State
Government was racing against time to meet the deadline set by the Centre to
con- stitute the new panchayats. However, during the hearing of the writ
petitions before the High Court, the State Government had in its
counter-affidavit voluntarily offered to remove the said grievances and invite
the objections afresh and finalise the delimitation of the panchayat areas.

However,
no order was passed on the said offer by the High Court. Subsequently, the
State Government on it,; own cancelled the notification of election dated 31st August, 1994 to meet the said grievances of the
writ petitioners, i.e., the respondents herein. However, in view of the letter
dated 12th November,
1994 received from the
Centre, to which we have already made a reference, threatening to stop the
release of funds, the State Government was com- pelled to renotify the
elections on 26th
November, 1994 in pursuance
of which the election process was to commence on 3rd December, 1994. In the meanwhile, on 2nd December, 1994 the impugned judgment was delivered
by the High Court.

50.
Before us, again, in order to prove its bonafides, the State Government
voluntarily offered to hear the respondents with regard to their grievances and
for that purpose to cancel the notification dated 26th November, 1994 and reschedule the election process without
prejudice to their contentions in the appeal. By our interim order dated 9th February, 1995, we permitted the State Government
to cancel its notification dated 26th November, 1994, to hear the respondents with
regard to their said grievances and to reschedule the election process. That
order of 9th February,
1995 is reproduced
below:

"Pending
the decision, we direct as follows:

The
Governor may adopt the Notifications issued by the Director of Panchayat Raj
under Section 3 read with Section 11-F of the Uttar Pradesh Panchayat Raj Act,
1947 [Act] between 2nd and 5th August, 1994 as his own proposals for the
purpose of specifying villages and constituting Gram Sabha and Panchayat areas
under the Act. The Governor may thereafter or simultaneously issue a fresh
notice inviting objections to the said proposals. He will give at least 10
days' clear time for lodging objections. He may also nominate officers to hear
the said objections. After the objections are disposed of final Notification or
Notifications will be issued by the Governor.

279
The notice inviting objections must be prominently displayed at least in the
offices of all the Block Development Officers throughout the period fixed for
filing the objections. In addition, wide publicity to such notice should be
given on T.V., Radio and in Newspapers having wide circulation in the areas
concerned.

It
would not be necessary to give oral hearing to the objector unless the officer
concerned considers it necessary to do so.

After
the final Notification/s is/are issued, the State Election Commissioner may
proceed with the conduct of the elections. " 51.We understand that the
grievances of the people in the areas have since been heard and the process of
election is underway according to the revised schedule.

52.The
above order was passed as stated earlier without prejudice to the contentions
of the State Government that the notifications issued by the Director under
Section 3 read with Section 11-F of the Act between 2nd and 5th August, 1994 were
valid. We have already held that since the Governor means the State Government,
the Legislature could empower the State Government to delegate all or any of
its powers under the Act to any officer or authority subordinate to it. This is
what the legislature has done by enacting Section 96A and the State Government
in pursuance of the provisions of the said Section, delegated its powers to the
Director. We have held that both the provision of Section 96A and the
delegation made by the State Government to the Director under the said
provision is valid. Hence, the notifications in question issued by the Director
are valid. The adoption by the Governor, of the notifications issued by the
Director pursuant to our interim order of 9th February, 1995 has, therefore, to be deemed to be
by way of abundant precaution, pending the decision on the contentions raised
on behalf of the respondents. The actions of the Governor pursuant to our
interim order, therefore, in no away reflect adversely on the validity of the notifications
issued by the Director.

53.We
must also make it clear that we had passed the interim order, as stated
earlier, pending the decision and without prejudice to the contentions of the
State Government that the election process once started could not be set at
naught by raising objections on the ground that the delimitation of the panchayat
areas was defective. We have pointed out that the original delimitation of the panchayat
areas having been made much prior to the election notification of 31st August, 1994, the respondent-writ petitioners
could not have challenged the same after the said notification and the Court
could not have entertained the challenge. There was, therefore, no invalidity
in the action taken by the State Government by its notification of 31st August, 1994 to commence the election process.
We are, in these proceed- ings, referring to the lacuna in the steps taken by
the State Government to finalise the panchayat areas only with a view to point
out that it was obligatory on the State Government to hear the objections
before the panchayat areas were finalised. The ratio of the decisions of this
Court in Visakhapatnam Municipality V. Kandregula Nukaraju & Ors. [(1976) 1
SCR 545], S-L. Kapoor v. Jagmohan & Ors. [(1980) 3 SCC 379], Baldev Singh
& Ors. v. State of Himachal
Pradesh & Ors. [(1987)
2 SCC 510], Sundarjas Kanyalal 280 Bhatija & Ors. v. Collector, Thane, Maharashtra
& Ors. [(1989) 3 SCC 396], and Atlas Cycle Industries Ltd. v. State of Haryana
& Ors. [(1993) Supp. 2 SCC 278] requires that a reasonable opportunity for
raising the objections and hearing them ought to be given in such matters since
the change in the areas of the local bodies results in civil consequences. It
was not disputed before us that the action of bringing more villages than one under
one gram panchayat when they were earlier under separate gram panchayats, does
involve civil consequences. However, as held in Visakhapatnam Municipality,
S.L. Kapoor, Baldev Singh, S. L. Bhatija and Atkas Cycles cases, in matters
which are urgent even a post-decisional hearing is a sufficient compliance of
the principle of natural justice, viz., audi alteram pattern. It is in view of
this position in law that the State Government had offered to hear the
grievances of the writ petitioners before the High Court and before us.

54.We
are, therefore, more than satisfied that there were no mala fide intentions on
the part of the State Government in giving the short time for submitting the
objections and for hearing and disposing them of. We may, however, make it clew
that although, as pointed out earlier, the challenge to the delimitation of the
panchayat areas on the said grounds could not have been made in the present
case after the election notification was issued, the State Government should
bear it in mind that if and when the next regrouping of the villages and redetermination
of the panchayat areas is undertaken, the authorities will have to give
sufficient opportunity to the people of the areas concerned for raising the
objections. This is with a view to remove their grievances, if any, with regard
to the difficulties, inconveniences and hardships, likely neglect of their
interests, domination of certain sections and forces, remoteness of the seat of
administration, want of proper transport and communication facilities etc. The
opportunity will also provide an occasion for the people to come forward with
suggestions for better and more viable, compact and cohesive regrouping of the
villages for efficient administration and economic development. The objections
are not to be invited to enable the people to exercise the sort of a right of
self-determination which is sought to be spelt out by the High Court. The final
decision with regard to the delimitation of the panchayat , after hearing the
objections and suggestions, will, of course, be that of the State Government
acting through the Director.

55.The
last contention of the respondents was that the Act makes provision for the nyaya
panchayats whereas the amended provisions of the Constitution do not direct the
Organisation of such panchayats and, therefore, the Act is ultra vires the
Constitution. The contention is only to be stated to be rejected. Admittedly
the basis of the organisation of the nyaya panchayats under the Act is different
from the basis of the Organisation of the gram panchayats and the functions of
the two also differ. The nyaya panchayats arc in addition to the gram panchayats.

The
Constitution does not prohibit the establishment of nyaya panchayats. On the
other hand, the Organisation of the nyaya panchayats will be in promotion of
the directive principles contained in Article 39A of the Constitution. It is
therefore, difficult to appreciate this contention.

56. As
pointed out above, the decision 281 of the High Court suffers from errors and
has to be set aside. The appeals, therefore, succeed and are hereby allowed and
the impugned decision of the High Court is set aside with costs throughout.